*Issues: Does 1993 Religious Freedom Restoration
Act require government to permit importation, distribution, possession,
and use of Schedule I hallucinogenic controlled substance, when
Congress has found that substance has high potential for abuse,
it is unsafe for use even under medical supervision, and its importation
and distribution would violate international treaty?

Holding: (from Westlaw) The Supreme
Court, Chief Justice Roberts, held that: (1) Government had burden
to demonstrate compelling interest, and (2) Government failed to
demonstrate compelling interest in barring sect's sacramental use
of hoasca.
Affirmed and remanded.

History: Petition for certiorari was filed
on 2/10/2005. Petition was granted on 4/18/05. Argued on 11/1/05.
Decided 2/21/06.

*Holding below:Centro
Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389
F.3d 973, 10th Cir. (en banc). In light of Congress's implicit
determination in Religious Freedom Restoration Act that harm prevented
and public interest served by protecting citizen's free exercise
of religion must be given controlling weight, barring government's
proof, by specific evidence, that its interests are more compelling,
district court did not abuse its discretion in preliminarily enjoining
enforcement of Controlled Substances Act against church's use of
hoasca (hallucinogenic tea) in religious ceremonies, based on its
finding that scale tipped in church's favor given closeness of parties'
evidence regarding safety of hoasca use and its potential for diversion.

*Issues: (1) Should interest-balancing
test in White Mountain Apache Tribe v. Bracker be applied to preempt
state's off-reservation enforcement of its motor vehicle code? (2)
Should court abandon White Mountain Apache interest-balancing test
in favor of preemption analysis based on principle that Indian immunities
are dependent upon congressional intent?

History: Petition for certiorari was filed
on 06/23/2005. Judgment vacated and remanded to the 10th Cir. 12/12/05.

*Holding below:Prairie
Band Potawatomi Nation v. Wagnon, 402
F.3d 1015, 10th Cir. District court did not abuse its discretion
when it permanently enjoined Kansas from further application and
enforcement of its motor vehicle registration and titling laws against
federally recognized Indian tribe, its members, and any persons
who operate or own vehicle properly registered and titled under
tribe's motor vehicle code, district court havingappropriately balanced
interests at issue in accordance with White
Mountain Apache Tribe v. Bracker,
448 U.S. 136 (1980), and determined that federal and tribal
interests in promoting strong tribal economic development, self-sufficiency,
and self-governance preempt state's asserted interest in public
safety.

*Issues: (1) When state taxes receipt
of fuel by nontribal distributors, manufacturers, and importers,
and such receipt occurs off-reservation, does interest balancing
test in White
Mountain Apache Tribe v. Bracker, 448
U.S. 136 (1980), apply because fuel is later sold by tribe to
final consumers? (2) Should court abandon White Mountain Apache
interest balancing test in favor of preemption analysis based on
principle that Indian immunities are dependent upon congressional
intent? (3) Did court of appeals err in applying White Mountain
Apache interest balancing test by, inter alia, placing dispositive
weight on fact that tribally owned gas station derives income from
largely nontribal patrons of tribe's nearby casino?

Holding: (from Westlaw) The Supreme
Court, Justice Thomas, held that:
(1) Chickasaw categorical bar on imposition of legal incidence of
state excise tax on a tribe or on tribal members for sales made
inside Indian country without congressional authorization was not
applicable;
(2) Bracker interest-balancing test for preemption of state taxation
of activity on an Indian reservation, which applies when a state
asserts taxing authority over the conduct of non-Indians engaging
in activity on a reservation, was not applicable;
(3) tax was not invalid on theory that it was impermissibly discriminatory
because the state exempted from taxation fuel sold or delivered
to all other sovereigns; and
(4) tax was valid and posed no affront to tribe's sovereignty.

History: Petition for certiorari was filed
on 11/05/2004. Petition was granted on 2/28/05. Argument on 10/3/05.
Decided 12/6/05.

*Holding below:Prairie
Band of Potawatomi Nation v. Richards, 379
F.3d 979, 10th Cir. Kansas tax on fuel supplied to Indian tribe
for its sole, on-reservation gas station by non-Indian distributors
is preempted by federal law because, although state has interest
in raising revenue, tax is incompatible with and outweighed by strong
tribal and federal interests, including (i) tribal and federal interests
in tribal self-sufficiency and economic development, including efforts
to attract non-Indians to tribe's on-reservation casino, of which
fuel sales, 73 percent of which are to casino patrons and employees,
are integral and essential part, and (ii) tribe's need to raise
fuel revenues to construct and maintain, without state assistance,
reservation roads, bridges, and related infrastructure, including
access road to casino from interstate highway, to which tribe's
fuel revenue is dedicated by tribal law.

*Issues: Do state taxpayers have standing
to challenge actions of state government or state agencies that
expend, or involve use of, state taxpayer dollars, simply because
they pay taxes to state?

History: Petition for certiorari was filed
on 2/02/2006. The petition for a writ of certiorari is granted.
The judgment is vacated and the case is remanded to the U.S. Court
of Appeals for the Ninth Circuit for further consideration in light
of DaimlerChrysler
Corp. v. Cuno, 547 U.S. ___, 74 U.S.L.W. 4233 (2006). The Chief
Justice took no part in the consideration or decision of this petition.

Petition for certiorari has been
filed and is pending in 6 Indian law cases this term.

Subjects: Oglala Sioux Tribe of the Pine
Ridge Reservation, South Dakota -- Members; Law -- Navajo Nation,
Arizona, New Mexico & Utah -- Application -- Non-members of
a tribe; Equality before the law -- United States; Due proecess
of law -- United States; Criminal jurisdiction -- Navajo Nation,
Arizona, New Mexico & Utah -- Application -- Non-members of
a tribe.

*Issues: (1) Can Congress lawfully vest
Indian Nations, which are not subject to U.S. Constitution, with
criminal jurisdiction over nonmember Indians who are citizens of
United States--but not over nonmember non-Indians--without violating
equal protection and due process clauses of Fifth Amendment? (2)
Can Indian tribes exercise criminal jurisdiction over nonmembers,
but only as long as they are Indians, without violating equal protection
and due process provisions of Indian Civil Rights Act? (3) Can Indian
tribes exercise criminal jurisdiction over nonmember Indians, who
are citizens of United States, outside of Constitution without violating
due process of law? (4) Did Congress, by amending Indian Civil Rights
Act to provide Indian tribes with criminal jurisdiction over nonmember
Indians, abrogate Navajo Treaty of 1868, which explicitly provides
for federal jurisdiction over intertribal offenses? (5) Does Congress
possess power to grant criminal jurisdiction to Indian tribes over
nonmembers under Indian commerce clause, art. 1, § 8, cl. 3,
even though tribes are not bound by Constitution?

History: Petition for certiorari was filed
on 6/16/2006.

*Holding below:Means
v. Navajo Nation, 432
F.3d 924, 9th Cir. Under 1990 amendments to Indian Civil Rights
Act, Indian tribe may exercise its inherent sovereign judicial power
in criminal cases, for crimes committed on tribe's reservation,
against anyone of Indian ancestry who is also Indian by political
affiliation, which at very least includes anyone who is enrolled
member of any tribe but does not include anyone who is merely racially
Indian; equal protection clause is not violated by permitting tribe
to prosecute its own members and members of other tribes, but not
anyone else, for crimes committed on reservation, because Indian
tribal identity is political rather than racial, and recognizing
criminal jurisdiction of tribal courts over Indians enrolled in
other tribes, who might not otherwise be subject to any criminal
jurisdiction, is rationally related to Indian self-government in
area in which rapid and effective tribal response may be needed;
facial due process challenge has no force in this case, because
Indian Civil Rights Act and Navajo Bill of Rights confer on defendant
in this case all rights that he would enjoy under U.S. Constitution;
conditions of 1868 treaty between Navajo Nation and United States
for rendition of "bad" person have not been fulfilled
in this case, and thus tribe need not turn over to United States
for prosecution Indian defendant who is enrolled member of different
tribe.

Subjects: Mines and mineral resources -- Taxation -- Oklahoma; Mines and mineral resources -- Indian Country (Oklahoma); Indian allotments; Restricted lands; Five Civilized Tribes; Due process of law; United States. Constitution; Law -- United States.

*Issues: (1) Is federal law that subjects
minerals produced on restricted allotted lands of Five Civilized
Tribes after April 26, 1931, to all taxes, state and federal, unconstitutional
in context of case at bar? (2) How could Oklahoma and lower federal
courts totally and without explanation ignore solemn contract between
Miller Bruner, full-blood Creek Indian, and United States? (3) Is
statute of limitations tolled as to restricted (non-competent) Indians
as determined by Oklahoma Court of Appeals but denied by Tenth Circuit
Court of Appeals in Bruner v. United States, on Dec. 21, 2005, but
not decided in U.S. District Court for Northern District of Oklahoma?

History: Petition for certiorari was filed
on 5/15/2006.

*Holding below:Bruner
v. State of Oklahoma, 130
P.3d 767, Court of Appeals of Oklahoma. Tax exemption granted
to Indian tribes by original agreements between Creek Nation and
United States provided exemption for only 21-year period, which
expired by time Congress passed Act of May 10, 1928, which declared
that "all minerals, including oil and gas, produced on or after
April 26, 1931, from restricted allotted lands of members of the
Five Civilized Tribes in Oklahoma, or from inherited restricted
lands of full-blood Indian heirs or devisees of such lands, shall
be subject to all State and Federal taxes of every kind and character
the same as those produced from lands owned by other citizens of
the State of Oklahoma," and thus taxpayer, although his grandfather
was full-blood Creek Indian, is not entitled to refund of gross
production and petroleum excise taxes paid to Oklahoma for 1989
through 1994; in any event, taxpayer's refund application filed
with Oklahoma Tax Commission is time-barred.

*Issues: Were lands identified as "private
settlement lands" in Connecticut Indian Land Claims Settlement
Act, 25
U.S.C. §§ 1751-1760, set aside in that act for Mashantucket
Pequot Tribal Nation, and did they become Indian country upon purchase
by Mashantucket Pequot Tribal Nation?

History: Petition for certiorari was filed
on 5/15/2006.

*Holding below:Dark-Eyes
v. Commissioner of Revenue Services,887
A.2d 848, Supreme Court of CT. Enrolled member of federally
recognized Mashantucket Pequot Tribe was properly subjected to state
income tax on income she derived from sources within tribe's reservation
in 1996-98 while living on property that was owned by tribe and
designated as "private settlement lands" by Mashantucket
Pequot Indian Claims Settlement Act, but that was not part of reservation,
had not been set aside for use by Indians as Indian land within
meaning of claims settlement act (because it had not been purchased
with "settlement funds" appropriated under act to buy
settlement lands but had instead been purchased by tribe with nonsettlement
funds), and thus was not Indian country until taken into trust by
federal government in August, 1998.

Subjects: Oacoma (S.D.); Lyman County
(S.D.); South Dakota; Trust lands -- Lower Brule Sioux Tribe of
the Lower Brule Reservation, South Dakota; United States. Dept.
of the Interior; United States. Indian Reorganization Act; Acquisition
of property -- South Dakota; Delegation of powers.

*Issues: Is 25
U.S.C. § 465, which allows secretary of interior to acquire,
in trust, "in his discretion," any amount of "lands"
at any location in nation, on or off reservation, for purpose of
"providing land for Indians," unconstitutional delegation
of legislative power?

History: Petition for certiorari was filed
on 5/08/2006.

*Holding below: State
of South Dakota v. United States Department of the Interior,
423
F.3d 790, 8th. Cir. Provision of Indian Reorganization Act that
authorizes secretary of interior, "in his discretion,"
to acquire "any interest in lands ... within or without existing
reservations ... for the purpose of providing land for Indians,"
25
U.S.C. § 465, is not unconstitutional delegation of legislative
authority when viewed in light of statutory aims and legislative
history of IRA, whose goals of providing lands sufficient to enable
Indians to achieve self-support and ameliorating damage resulting
from prior government policy sufficiently narrow delegation and
guide secretary's discretion in deciding when to take land into
trust for Indians.

*Issues: (1) Does 25
U.S.C. § 1301(2) violate fundamental constitutional right
of American Indians, who are citizens of United States, to equal
protection guaranteed by Fifth Amendment by subjecting nonmember
Indians, but no other similarly situated nonmembers of different
race, to criminal prosecution and punishment by Indian tribes whose
judicial proceedings are not constrained by Constitution? (2) Does
same statute violate fundamental right of U.S. citizens to due process
guaranteed by Fifth Amendment by subjecting them to criminal prosecution
and punishment by extra-constitutional sovereigns, Indian tribes,
within borders of United States but unconstrained by Constitution,
which sovereigns, because of their racially and ethnically exclusive
nature, deny them right of full and equal participation in their
political life?

History: Petition for certiorari was filed
on 4/6/2006.

*Holding below: Morris
v. Tanner,2005
WL 3525607, 9th. Cir. Indian Civil Rights Act's 1990 amendments,
under which tribal court jurisdiction in criminal cases extends
to all Indians who are enrolled members of federally recognized
tribe, and not just Indians who are members of prosecuting tribe,
do not violate equal protection or due process principles, and thus
district court properly entered summary judgment for Confederated
Salish and Kootenai Tribes in whose tribal court criminal speeding
charges are pending against enrolled member of Minnesota Chippewa
Tribe who challenged constitutionality of 1990 amendments.

Subjects: Jurisdiction -- United States;
United States. Bureau of Indian Affairs; Leases -- Shivwits Band
of Paiutes; Police power -- Utah; Trust lands -- Shivwits Band of
Paiutes; Land use -- Shivwits Band of Paiutes.

*Holding below: Shivwits
Band of Paiute Indians v. State of Utah, 428
F.3d 966, 10th Cir.
Under binding circuit precedent, United States v. Roberts,
185 F.3d 1125 (10th Cir. 1999), Section 465 of Indian Reorganization
Act,
25 U.S.C. § 465, which authorizes secretary of interior
"to acquire ... any interest in lands ... for the purpose of
providing land for Indians," such land to be held "in
trust" for tribe or individual "for which the land is
acquired," provides standards for exercise of secretary's discretion
and thus is not unconstitutionally standardless delegation of legislative
power.

Petition for certiorari was
denied in 27 Indian law cases and one judgment vacated.

Subjects: Indian Country (U.S.) -- Defined;
Criminal actions arising in Indian Country (U.S.) -- Pueblo of Pojoaque,
New Mexico; Assault and battery -- Pueblo of Pojoaque, New Mexico;
Indians of North America -- Violence against.

*Issues: not available from USLW

History: Petition for certiorari was filed
on 5/01/2006. Petition was denied on 6/5/06.

*Holding below: United
States v. Arrieta, 436
F.3d 1246, 10th. Cir. (from Westlaw) The Court of Appeals,
McConnell, Circuit Judge, held that:
(1) road maintained by county, lying between two parcels of land
owned by non-Indians, but within exterior boundaries of Pojoaque
Pueblo, was Indian country, and
(2) district court did not have authority to depart downward from
agreed upon specific sentence.
Affirmed in part, reversed in part, and remanded.

*Issues: (1) Do cross-petitioners have
standing as beneficiaries of Hawaii's ceded lands trust to challenge
federal laws that require present trustee (state of Hawaii) to breach
its fiduciary duties (i.e., duty of impartiality and duty not to
comply with illegal trust terms) and to sue Hawaii state officials
to enjoin them from breaching same fiduciary duties? (2) Do cross-petitioners
have standing as state taxpayers to challenge federal laws that
require state of Hawaii to engage in racial discrimination and to
sue to enjoin state officials from implementing federally mandated
racial discrimination? (3) Do cross-petitioners have standing as
state taxpayers (in addition to right to challenge direct appropriations
of tax revenues to Office of Hawaiian Affairs, properly upheld by
court of appeals) to sue to enjoin state officials from racial discrimination
in other ways that increase their state tax burden such as: by issuing
general obligation bonds or by transfers characterized as "settlement"
or "trust revenues" or by lease of public lands for nominal
consideration?

History: Petition was filed on 3/03/06.
Petition was denied on 6/12/06.

*Holding below: Arakaki
v. Lingle423
F.3d. 954, 9th Cir. State taxpayers have standing to bring lawsuit
claiming that appropriation of state tax revenue to support state
Office of Hawaiian Affairs programs that limit benefits to "native
Hawaiians" or "Hawaiians" violates 14th Amendment's
equal protection clause, but they lack standing to sue federal government,
and thus district court properly dismissed all claims to which United
States is either named or indispensable party, including claims
challenging appropriation of tax revenue to Department of Hawaiian
Home Land/Hawaiian Homes Commission, claims challenging settlement
of past claims against OHA, claims challenging issuance of bonds
and all other spending that does not originate in tax revenue, and
claims challenging eligibility requirements with respect to DHHL/HHC
leases.

*Issues: Should obligations imposed by
Indian treaty with prior sovereign be enforceable as matter of federal
law under supremacy clause?

History: Petition for certiorari was filed
on 3/06/2006. Petition was denied on 6/12/06.

*Holding below:Alliance
to save the Mattaponi Indian v. Commonwealth of Virginia, Department
of Environmental Quality,
270 Va. 423, Supreme Court of VA. Provision of U.S. Constitution's
supremacy clause that "all treaties made ... under the Authority
of the United States, shall be the supreme Law of the Land"
is inapplicable to 1677 treaty between Indian tribe and British
crown; given this court's rejection of contention, advanced under
various theories, that such treaty is federal law, lower court's
holding that tribe's treaty claims arise under Virginia law has
become law of case; absent waiver of sovereign immunity, state and
its agents are not subject to suit under state law on tribe's claims
that state agency's issuance of permit to build reservoir that would
require flooding of "buffer zone" surrounding reservation
and endanger tribe's fishing and hatchery operations violates its
1677 treaty.

*Issues: Native American tribe's sovereign
immunity bars lawsuit by former tribal employee alleging that she
was fired without cause, that tribe failed to reimburse her for
her out-of-pocket expenses, and that tribe refused to compensate
her for her unused annual leave; contention that tribe waived its
immunity by failing to appoint grievance committee pursuant to its
personnel policies and procedures manual when employee filed grievance
is meritless, because any waiver of tribal immunity must be clear
and unequivocal.

History: Petition for certiorari was filed
on 4/3/2006. Petition was denied on 6/05/06.

Seneca Nation of Indians v. New York
Docket
No. 05-905

Subjects: Seneca Nation of New York;
Tonawanda Band of Seneca Indians of New York; New York (State);
New York State Thruway Authority; Conveyancing; Grand Island (N.Y.
: Island); Niagara River (N.Y. and Ont.); Treaties -- Ratification;
United States. Trade and Intercourse Act; Land tenure; Interest
(Ownership rights); Indian title -- New York (State); Treaty of
Canandaigua (1794).

*Issues: (1) Did Senecas hold title to
islands in Niagara River under Treaty of Canandaigua, 7 Stat. 44
(Nov. 11, 1794), so that New York's purchase of islands from Senecas
in 1815 without federal approval violated Non-Intercourse Act,
25 U.S.C. § 177? (2) Do this court's precedents require
that ambiguous treaty terms be read liberally in favor of Indian
parties, notwithstanding state non-party's later claim of pre-existing
rights to land at issue and invocation of United
States v. Minnesota, 270
U.S. 181 (1926)? (3) Should treaties made between Indian tribes
and British crown before Constitution be interpreted according to
same rules applicable to treaties between Indian tribes and United
States after Constitution, such that title to Indian land may not
be extinguished without plain and unambiguous expression of intent
by sovereign?

History: Petition for certiorari was filed
on 1/17/2006. Petition was denied on 6/05/06.

*Holding below: Seneca
Nation of Indians v. New York,
382 F.3d 245. 2nd Cir. Although New York's 1815 purchase of
Niagara River islands from Seneca Nation of Indians did not comply
with Non-Intercourse Act, which bars conveyances by Indians to non-Indians
unless made or ratified by Congress, New York already had title
to islands when it ostensibly purchased them from Senecas and thus
conveyance was not subject to Non-Intercourse Act requirements,
Seneca title having been extinguished by 1764 treaties between tribe
and Great Britain, and New York having acquired title upon defeat
of British in Revolutionary War; 1794 Treaty of Canandaigua did
not divest New York of title to islands and return it to Senecas.

History: Petition for certiorari was filed
on 3/15/2006. Petition was denied on 5/22/06.

*Holding below: Lamere v. Superior Court,
31
Cal.Rptr.3d 880, Court of Appeal, CA. Pub. L. No. 280, 28
U.S.C. § 1360, which provides that certain states, including
California, "shall have jurisdiction over civil causes of action
between Indians or to which Indians are parties which arise in the
areas of Indian country ... to the same extent that such State has
jurisdiction over other civil causes of action," to extent
that it grants civil jurisdiction, was primarily intended to redress
lack of adequate Indian forums for resolving private legal disputes
between reservation Indians and between Indians and other private
citizens, and thus does not extend to suit by alleged members of
California Indian tribe challenging their disenrollment, which is
not private legal dispute between reservation Indians, but goes
to heart of tribal sovereignty; despite naming of individual members
of tribe's enrollment committee as defendants, dispute remains essentially
between plaintiffs and tribe.

Subjects: Pataki, George E., 1945-; Cayuga
Nation of New York -- Claims; Damages -- Cayuga Nation of New York;
Eviction -- Cayuga Nation of New York; Trespass; New York (State);
Laches -- United States.

History: Petition for certiorari was filed
on 2/03/2006. Petition was denied on 5/15/06.

*Holding below: Cayuga
Indian Nation of New York v. Pataki, 413
F.3d 266, 2nd Cir. Based on City
of Sherrill v. Oneida Indian Nation of New York, 544
U.S. 197, 73 U.S.L.W. 4242 (2005), which held that equitable
doctrines, such as laches, acquiescence, and impossibility, can
be applied to Indian land claims in appropriate circumstances even
when claims are legally viable and within limitations period, laches
bars Indian tribe's possessory claims, first filed in 1980, to land
that it ostensibly ceded to New York by 1795 and 1807 treaties that,
because they were never ratified by federal government, are invalid
under Nonintercourse Act; tribe's inability to secure relief on
its possessory land claims forecloses its claims for damages based
on trespass; United States's 1992 intervention in suit based on
events that occurred 200 years ago to assert interests of tribe,
rather than its own interests, falls within heartland of exception
to rule against subjecting United States to laches defense.

United States v. Pataki
Docket
No. 05-978

Subjects: Pataki, George E., 1945-; Cayuga
Nation of New York -- Claims; Damages -- Cayuga Nation of New York;
Eviction -- Cayuga Nation of New York; Trespass; New York (State);
Laches -- United States.

*Issues: Did court of appeals err in holding
that Indian tribes and United States were barred by laches from
suing New York for money damages as compensation for state's acquisition
of tribal lands in violation of federal law?

History: Petition for certiorari was filed
on 2/03/2006. Petition was denied on 5/15/06.

*Holding below: Cayuga
Indian Nation of New York v. Pataki, 413
F.3d 266, 2nd Cir. Based on City
of Sherrill v. Oneida Indian Nation of New York, 544
U.S. 197, 73 U.S.L.W. 4242 (2005), which held that equitable
doctrines, such as laches, acquiescence, and impossibility, can
be applied to Indian land claims in appropriate circumstances even
when claims are legally viable and within limitations period, laches
bars Indian tribe's possessory claims, first filed in 1980, to land
that it ostensibly ceded to New York by 1795 and 1807 treaties that,
because they were never ratified by federal government, are invalid
under Nonintercourse Act; tribe's inability to secure relief on
its possessory land claims forecloses its claims for damages based
on trespass; United States's 1992 intervention in suit based on
events that occurred 200 years ago to assert interests of tribe,
rather than its own interests, falls within heartland of exception
to rule against subjecting United States to laches defense.

History: Petition for certiorari was filed
on 12/19/2005. Petition was denied on 5/1/06.

*Holding below: Doe
v. Mann, 415
F.3d 1038, 9th Cir. Child custody proceeding relating
to Indian child residing on reservation is "civil cause of
action between Indians or to which Indians are parties" and
involves civil laws "that are of general application to private
persons" so as to fall within jurisdiction of California courts
under 28
U.S.C. § 1360(a) and thus within exception to exclusive
jurisdiction over child custody matters granted to tribal courts
under Indian Child Welfare Act, 25
U.S.C. § 1911(a).

Beams v. Norton
Docket
No. 05-900

Subjects: Trusts
and trustees -- United States; Indian preference in hiring --
United States; United States. Bureau of Indian Affairs; United
States. Wheeler-Howard Act; Marijuana -- Law and legislation
-- United States; Trust lands -- Indian Country (U.S.).; Indian
reservations -- United States; United States. Civil Rights Act
of 1964 – Title
7; United States. Age Discrimination in Employment Act of 1967.

*Issues: (1) Will U.S. government honor
its trust responsibility to Native American people? (2) Will U.S.
government honor Wheeler Howard Act, also known as Indian Reorganization
Act, in its Indian preference regulations in employing Indian people
in Bureau of Indian Affairs? (3) Does U.S. government endorse illegal
cultivation of marijuana on Indian trust lands on Indian reservations?
(4) Does U.S. government endorse cussing of employees by supervisors
as part of official business?

History: Petition for certiorari was filed
on 11/29/05. Petition was denied on 2/27/06.

*Holding below: Beams
v. Norton, 141
Fed. Appx. 769, 10th Cir. Dismissal of individual's claims
under Indian Preference Act, and summary judgment on his claims
under Title VII of 1964 Civil Rights Act and Age Discrimination
in Employment Act, are affirmed for reasons stated by district court,
which ruled, inter alia, that Indian Preference Act does not confer
private right of action.

*Issues: (1) Does First Amendment petition
clause guarantee of right to seek judicial redress of grievances
require that Rule 19(b) be construed and applied in manner that
will avoid dismissal of suit for failure to join indispensable party
if effect of such dismissal would be to deprive plaintiff, and every
member of public, of judicial forum in which asserted constitutional
or statutory violations could be litigated? (2) Is Ninth Circuit's
adherence to rule that, in all cases in which plaintiff is challenging
validity of contract, every party to that contract is indispensable
party whose absence requires dismissal of suit pursuant to Rule
19(b), inflexible rule in conflict with this court's decisions in
Provident
Tradesmens Bank & Trust v. Patterson, 390
U.S. 102 (1968), and National
Licorice Co. v. NLRB, 309
U.S. 350 (1940)? (3) Is it error to grant Rule 19(b) dismissal
of plaintiff's suit against state officials on grounds that Indian
tribe is indispensable party when (a) tribe knows that lawsuit is
pending, (b) interests of tribe and state officials are identical,
(c) tribe refuses to waive sovereign immunity and to consent to
being party defendant and thus cannot be joined as party, and (d)
tribe files pleadings in lawsuit in support of positions taken by
state officials and urges court to dismiss lawsuit because tribe
is indispensable party?

History: Petition for certiorari was filed
on 12/06/2005. Petition was denied on 2/21/06.

*Holding below: Wilbur
v. Locke, 423
F.3d 110, 9th Cir. In lawsuit against state officials
seeking to invalidate compact between state and Indian tribe relating
to taxation of cigarette sales on tribe's reservation, tribe has
interest in retaining valuable benefits granted by compact that
cannot be represented by state and is thus necessary party whose
sovereign immunity, which has been neither waived nor abrogated,
precludes its joinder, thus requiring dismissal of suit under Fed.R.Civ.P.
19(b), after balancing factors set forth therein, for lack of indispensable
party; contention that First Amendment's petition clause prohibits,
or at least weighs against, dismissal of this action for nonjoinder
is meritless.

*Issues: (1) Does IGRA empower governor
of affected state to negotiate terms of tribal-state compact that
violate constitutional rights of non-Indian workers in Indian casinos
and businesses? (2) Is Tenth Circuit's interpretation of IGRA
Section 2710(d)(3) in
Pueblo of Santa Ana v. Kelly, 104
F.3d 1546 (10th Cir. 1997), correct? (3) Are Indian tribes necessary
or indispensable parties to lawsuit brought by non-Indian citizens
against their government for declaratory relief to interpret their
rights and state's duties under tribal-state compact?

History: Petition for certiorari was filed
on 11/30/2005. Petition was denied on 1/23/06.

*Holding below: Shobar
v. California, 134
Fed. Appx. 184, 9th Cir. District court properly dismissed
non-Indian casino workers' claim against state of California, regarding
whether Indian tribal employer may participate in state workers'
compensation system or establish its own system pursuant to tribal-state
compact, because no private cause of action exists to enforce state-tribal
compact under either Indian Gaming Regulatory Act or terms of compact
itself; even if employees could state claim, suit could not proceed
because Indian tribe is indispensable party under Fed.R.Civ.P.
19, and tribal sovereignty precludes tribe's joinder.

*Issues: May plaintiff join as involuntary
defendant under Fed.R.Civ.P. 19 party that plaintiff is prohibited
from suing directly?

History: Petition for certiorari was filed
on 09/15/2005. Petition was denied on 1/23/06.

*Holding below:Equal
Opportunity Commission v. Peabody Western Coal Company, 400
F.3d 774. 9th Cir. Despite contentions that tribal sovereign
immunity and Equal Employment Opportunity Commission's inability
to bring direct suit against Navajo Nation under Title VII of 1964
Civil Rights Act preclude joinder, EEOC may join Navajo Nation in
its action alleging that employer that operates coal mines under
leases from Nation that require employment preference be given to
Navajos violated Title VII by refusing to hire non-Navajo Native
Americans, because (i) Nation is necessary party, (ii) EEOC seeks
no affirmative relief against Nation, (iii) tribal sovereign immunity
does not apply in action by EEOC, and (iv) circuit precedent, which
is consistent with U.S. Supreme Court's clarification regarding
complete relief, other circuits' joinder rulings, and purpose and
text of Fed.R.Civ.P.
19, does not require that there be direct cause of action against
party to be joined if joinder is for sole purpose of effecting complete
relief between parties.

Patterson v. New York
Docket
No. 05-550

Subjects: Reserved fishing rights --Tuscarora
Nation of New York; Treaty rights --Tuscarora Nation of New York;
Treaty of Canandaigua (1794); Land tenure -- Seneca Nation of New
York; Ice fishing -- New York (State ) -- Niagara County; Wilson-Tuscarora
State Park (N.Y.); Fishery law and legislation -- New York (State);
Tuscarora Nation of New York -- Members.

*Issues: (1) Are Tuscarora Nation's fishing
rights reserved in 1794 Treaty of Canandaigua wholly derived from
and dependent upon continued ownership of lands by Seneca Nation?
(2) Could Tuscarora Nation's fishing rights reserved in 1794 Treaty
of Canandaigua be divested by implication by Seneca Nation in agreement
to which Tuscarora Nation was not party?

History: Petition for certiorari was filed
on 10/25/2005. Petition was denied on 1/9/06.

*Holding below: People
v. Patterson, 5
N.Y.3d 91, Court of Appeals of NY. Seneca Indians surrendered
their ownership of land at issue in this case in 1797, and thus,
because 1794 Treaty of Canandaigua did not grant members of Tuscarora
Indian Nation separate usufructuary fishing rights in Seneca lands
independent of Seneca's possessory interest in land, members of
Tuscarora Nation do not now have fishing rights in land, and member
of Tuscarora Nation may be fined by New York for ice fishing on
land previously held by Seneca's without proper tag in violation
of state law.

*Issues: (1) Does change in law constitute
"extraordinary circumstances" to allow reopening 25-year-old
final judgment pursuant to Fed.R.Civ.P. 60(b)(6)? (2) Is relief
available under Fed.R.Civ.P. 60(b)(6) for alleged misconduct of
party in separate proceeding more than one year after judgment in
this case? (3) Does barring petitioners from participating in administrative
proceedings and litigation on grounds that those proceedings will
not affect their treaty rights deny petitioners' right to due process
as result of Ninth Circuit decision below?

History: Petition for certiorari was filed
on 10/03/2005. Petition was denied on 1/9/06.

*Holding below: Samish
Indian Tribe v. State of Washington, 394
F.3d 1152,
9th Cir. Although federal recognition is not necessary for exercise
of treaty fishing rights by signatory tribe, it is sufficient condition
for exercise of those rights, and is also determinative of issue
of tribal organization, and thus district court that in 1979 held
that Samish tribe was not entitled to treaty fishing rights because
it had not maintained organized tribal structure abused its discretion
in denying, in 2002, tribe's Fed.R.Civ.P. 60(b)(6) motion for relief
from 1979 judgment, which motion was based on extraordinary circumstance
of tribe's having obtained federal recognition in 1996.

*Issues:Whether congressionally-ratified treaty that has been held to
provide implied right of action against states and their instrumentalities,
allows cause of action for damages against municipality alleged
to have knowingly and without congressional or state authorization
taken nearly one-half of water flowing through reservation and thus
destroyed substantial portion of off- and on-reservation treaty-protected
fisheries?

History: Petition for certiorari was filed
on 10/03/2005. Petition was denied on 1/9/06.

*Holding below: Skokomish
Indian Tribe v. United States, 410
F.3d 506, 9th Cir. Indian tribe's suit for damages against city
and public utility stemming from hydroelectric project's flooding
of Indian land, silting of river, and blocking of fish migration
in alleged violation of tribe's treaty rights is not cognizable
under treaty, which lacks language supporting damages claims against
nonparties, and may not be brought by tribe or by individual tribal
members under 42
U.S.C. § 1983.

*Issues: (1) In enacting Indian Gaming
Regulatory Act ("IGRA"), did--and, if so, could--Congress
empower states to pass laws that were otherwise in direct violation
of Bill of Rights of their own Constitutions? (2) If Bill of Rights
of state's Constitution prohibits commercial gambling but allows
limited forms of charitable gaming, does IGRA nevertheless empower
or, indeed, require such state to pass law permitting Indian tribes
to engage in commercial gambling?

History: Petition for certiorari was filed
on 09/15/2005. Petition was denied on 11/28/05.

*Holding below: Dalton
v. Pataki, 5
N.Y.3d 243, Court of Appeals of New York. Under Indian Gaming
Regulatory Act, "Class III gaming," which is most heavily
regulated type of gaming and includes casino gambling, may be conducted
on Indian land only in state that otherwise "permits such gaming
for any purpose by any person, organization, or entity," and
thus, because New York allows some forms of Class III gaming for
certain charitable purposes, such gaming may lawfully be conducted
on Indian land in New York despite provision of New York Constitution
that, subject to specific exceptions, prohibits commercial gambling.

*Issues: (1) Whether Congress exceeded
its power when--to promote tribal economic interests--it chose Indian
Gaming Regulatory Act's, 25
U.S.C. 2701 et seq. ("IGRA") compacting process, which
requires States alone to bear substantial expense and burdens in
negotiation of and entry into Tribal-State gaming compact that would
permit tribes to conduct megabillion dollar commercialized casino
gaming--despite such action by State and its officials being in
defiance of century old prohibition on such gaming contained in
people's Constitution and their Bill of Rights? (2) Whether IGRA
expands powers of executive and legislative branches of State government
beyond their enumerated powers, so that these branches of government
could enter into Tribal-State casino gaming compact--despite their
action being in defiance of powers they possess under State Constitution?
(3) Whether courts misperceive qualified non-brightline rule of
California
v. Cabazon, 480
U.S. 202 (1987) when they hold that because State permits very
limited charitable Class III gaming it must, under IGRA, allow tribes
to conduct large-scale commercialized Class III casino gaming--despite
IGRA's express legislative history that Cabazon was only to be applied
to Class II gaming and charitable gaming of any sort applies only
to justify Class II gaming?

History: Petition for certiorari was filed
on 09/15/2005. Petition was denied on 11/28/05.

*Holding below: Dalton
v. Pataki, 5
N.Y.3d 243, Court of Appeals of New York. Under Indian Gaming
Regulatory Act, "Class III gaming," which is most heavily
regulated type of gaming and includes casino gambling, may be conducted
on Indian land only in state that otherwise "permits such gaming
for any purpose by any person, organization, or entity," and
thus, because New York allows some forms of Class III gaming for
certain charitable purposes, such gaming may lawfully be conducted
on Indian land in New York despite provision of New York Constitution
that, subject to specific exceptions, prohibits commercial gambling.

Nakai v. United States
Docket
No. 05-6713

History: Petition for certiorari was filed
on 9/26/2005. Petition was denied on 10/31/05.

*Holding below: United
States v. Nakai, 413
F.3d 1019, 9th Cir. (From Westlaw) The Court of Appeals,
Noonan, Circuit Judge, held that:
(1) fact that only 6.1 percent of jurors who reported for jury trial
were Native American did not deprive defendant of a fair representation
of the community;
(2) FBI agent's purported testimony about statements by defendant
to law enforcement investigators would be hearsay;
(3) submission of conspiracy jury instruction was harmless error;
and
(4) evidence was sufficient to prove that shooting victim was alive
before defendant shot him.
Affirmed.

In re Kanon'ke:haka Kaianereh'ko:wa Kanon'ses:neh
Docket
No. 05-165

Subjects: Constitutional law; Separation
of powers; Oneida Nation of New York; Saint Lawrence County (N.Y.);
New York (State); St. Regis Band of Mohawk Indians of New York.

*Issues: Do constitutional checks and
balances preclude final order by court below terminating indigenous
constitutional title on basis of error of law alone that federal
law precludes constitutional law, rather than other way around?

History: Petition for certiorari was filed
on 08/02/05. Petition was denied on 10/11/05.

*Holding below: . Court determines sua
sponte that it lacks jurisdiction over this appeal because final
order has not been issued by district court as contemplated by 28
U.S.C. § 1291, and thus appeal is dismissed.

*Issues: (1) Does timber company have
Article III standing to challenge, as violation of establishment
clause, U.S. Forest Service decision to manage 50,000 acres of national
forest as "sacred site" because of "a resurgence
of Native American spiritualism and [the area's] religious importance
to American Indians," when timber company is: (a) denied opportunity
to bid for timber sales within that area, and (b) "directly
affected" by management of area as "sacred site"?
(2) Did U.S. Forest Service violate establishment clause when it
decided to manage 50,000 acres of national forest as "of religious
importance to American Indians" and excluded all human activity
but their own from that "sacred area"?

History: Petition for certiorari was filed
on 03/02/2005. Petition was denied on 10/3/05.

*Holding below:Wyoming
Sawmills Inc. v. United States Forest Service383
F.3d 1241, 10th Cir. Timber company's claim that U.S. Forest
Service's plan to consult with federal, state, and local agencies
and Native American groups to minimize impact of agency actions
on historical resources and traditional cultural uses in 18,000-acre
area surrounding Native American sacred landmark deprives company
of opportunity to bid on future timber sales is not redressable
by favorable court decision because any future sales are within
agency's discretion, and thus company lacks standing to assert establishment
clause challenge to plan.

*Issues: (1) Did court of appeals err
in holding that this court's decisions in Cherokee Nation v. Journeycake
and Delaware Indians v. Cherokee Nation necessarily determined that
Delaware Tribe of Indians abandoned its organized tribal status
in 1867 agreement with Cherokee, which holding conflicts with this
court's more recent declaration in Delaware
Tribal Business Committee v. Weeks, 430
U.S. 73 (1977), that "[d]espite their association with
the Cherokees, these Indians ... have over the years maintained
a distinct group identity, and they are today a federally recognized
tribe"? (2) Did court of appeals err in giving no deference
to interpretation of 1867 agreement made by secretary of interior
regarding Delaware Tribe's status, and in refusing to consider effect
of post-1867 relations between Delaware Tribe and United States
despite secretary's express reliance on legislative action and administrative
practice to confirm her interpretation? (3) When secretary determined
in 1996, on record following full administrative review with notice
and opportunity for all affected parties to be heard, that 1979
letter issued by subordinate official limiting federal relations
with Delaware Tribe was erroneous and should be withdrawn, and direct
federal relations restored, did court of appeals err in holding
that 1994 Federally Recognized Indian Tribe List Act and federal
acknowledgment procedures of 25
C.F.R. Part 83 prevented secretary from so correcting that error?

History: Petition for certiorari was filed
on 04/11/2005. Petition was denied on 10/03/05.

*Holding below:Cherokee
Nation of Oklahoma v. Norton, 389
F.3d 1074, 10th Cir. Department of Interior's 1996 decision
to grant federal recognition to Delaware Tribe of Indians as tribal
entity was improper interpretation of 1867 agreement between Delaware
Tribe and Cherokee Nation and contrary to rulings in Cherokee
Nation v. Journeycake, 155
U.S. 196 (1894), and Delaware
Indians v. Cherokee Nation,
193 U.S. 127 (1904), that Delaware Tribe and its members became
incorporated into Cherokee Nation under such agreement; agency's
decision also violated Section 103(3) of Federally Recognized Indian
Tribe List Act, and its use of "retract and declare" procedure
in recognizing tribe was arbitrary and capricious in violation of
Administrative Procedure Act, because agency impermissibly elected
not to follow procedures set out in 25
C.F.R. Part 83 for recognizing Indian tribe and did not even
properly waive application of such procedures.

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BNA, Inc. www.bna.com

A note about links used in this document

Blue links are to free materials on the internet. Green links are to Westlaw, for the convenience of
those who have a Westlaw account. Please contact the National Indian
Law Library if you need help obtaining legal documents.

The National Indian Law Library and Native American Rights Fund are not
affiliated with Westlaw. See www.westlaw.com for
more information about the Westlaw legal databases.

* Issues and holdings are provided under an agreement
BNA, Inc. www.bna.com

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